Tactical level PSYOP and MILDEC information operations: how to smartly and lawfully prime the battlefield

Army Lawyer, July, 2007 by Joshua E. Kastenberg

Psychological operations approval authority can be no lower than a JTF commander, but it must be noted that there are two levels of approval for two types of PSYOP packaging: "Objectives, Themes, and Messages" (OT&M) and "products." The OT&M must be approved by the President, his or her designated combatant commander, joint force commander, or designated ambassador. (50) The OT&M generally are characterized as overriding ideas designed to sway a segment of a population. Products, such as posters and news advertisements, may be approved by the joint force commander. (51) The significant restriction on PSYOP contained in the SROE is that National Command Authority approval is required before using e-mail or webpages for PSYOP. (52)

During wartime, a combatant commander is responsible for the direction and conduct of PSYOP in the combatant commander's (AOR) and is accountable to the President and Secretary of Defense through the Chairman of the Joint Chiefs of Staff. (53) Chairman of the Joint Chiefs Instruction (CJCSI) 3211.01A states that joint commanders are authorized to employ tactical MILDEC to support OPSEC during the preparation and execution phases of normal operations, and when the commander's forces are engaged with an adversary or subject to imminent attack. (54)

Finally, service branch regulations envision tactical level information operations. Although service regulations do not govern joint operations, they provide further insight into authorities regulating IO. For instance, Air Force Policy Directive (AFPD) 10-7 states that "IO will integrate into ... tactical planning and execution." (55) Air Force Instruction (AFI) 10-704, Military Deception Program, notes that the authority to execute tactical military deception rests with the combatant commander in whose theatre the operation resides. (56) However, the combatant commander may delegate the authority to conduct tactical level deception operations to a JTF commander. (57) Likewise, at a bare minimum, approval to execute a specific PSYOP or MILDEC operation rests with a JTF commander. (58) Additionally, a commander may not use MILDEC operations to intentionally deceive Congress or the American public. (59) Army regulations specific to PSYOP and MILDEC are non-existent. Instead, the Army specifically follows the DOD and CJCS instructions in training, planning, and executing IO in general. Finally, OPNAVINST 3434.1 governs Navy PSYOP programs (60) and OPNAVINST S3433.1 governs Navy MILDEC operations. (61) The language contained in the Navy instructions are roughly equivalent to their sister-service counterparts.

Law of War Principles

Principles and prohibitions in the law of war apply to PSYOP and MILDEC operations as much as they do to the kinetic battlefield itself.

Perfidy

The prohibition against perfidy is applicable to both PSYOP and MILDEC, as it is to any military operation. (62) Deception is an ancient and acceptable means of warfare. Ruses and stratagems are perfectly lawful, except for perfidy. For instance, Article 24 of the 1899 Hague Convention states, "[r]uses of war and the employment of methods necessary for obtaining information about the enemy and the country, are considered allowable." (63) This prohibition has been codified into the law of war, but its basis rests in the concept of chivalry. That is, certain rules of war are inviolable. Faking a surrender, or misusing a medical facility are two examples of perfidious conduct." (64)